Senator Amy Klobuchar, the incoming chair of the U.S. Senate Judiciary Committee’s Antitrust Subcommittee, just released a draft of the Competition and Antitrust Law Enforcement Reform Act of 2021, which includes a slew of antitrust-related initiatives.
In comments on this new legislation, Alec Stapp, director of technology policy at the Progressive Policy Institute, said:
“Senator Klobuchar’s proposed antitrust legislation includes many urgently needed provisions to ensure the federal government is safeguarding competition in every sector of the economy. According to one recent analysis, appropriations for our two federal antitrust agencies have fallen by 18% since 2010. Antitrust enforcers desperately need more resources to police anticompetitive conduct across the economy and bring cases when necessary. Antitrust cases are notoriously expensive and require high-level legal talent — this is not an area the government should be skimping on.”
“The package also includes new transparency and data collection requirements that would be hugely beneficial for better understanding the state of competition and antitrust enforcement in the U.S. Proposed competition studies on institutional investors’ cross-ownership and the role of monopsony power in labor markets are long overdue. Furthermore, a series of Congressional hearings focused on monopoly power in various sectors of the economy, including healthcare and agriculture, would help shed light on the size and scope of the problem we face. Lastly, a requirement for parties to a merger settlement to provide post-merger data is a common-sense idea that would allow enforcers to learn from past decisions and update their analytical methods for future cases.”
“While there is much to like in this batch of proposals, there is also much reason for caution. While certainly not perfect, the current set of antitrust institutions is much improved from what prevailed from the early 20th century until the 1970s, when almost every merger was presumed illegal and most behavior by large firms was inherently suspect. Under the current standard, enforcers need to show evidence of market power, anticompetitive conduct, and consumer harm. The problem with the proposed bill is that it would drastically lower the bar for antitrust liability and might inadvertently criminalize pro-competitive conduct. A prohibition on “conduct that materially disadvantages competitors” would essentially degrade antitrust law to a “know it when you see it” standard for anticompetitive conduct. In reality, lots of corporate conduct is ambiguous at first glance. Enforcers need to do the work of economic analysis and fact-finding to determine whether it’s pro-competitive or anti-competitive. We shouldn’t short circuit that process.”
If you would like to speak to Alec Stapp you can reach him at astapp@ppionline.org or (480) 628-3863.
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